Opinion
C.A. No. 04C-01-283 SCD.
March 11, 2004.
ORDER
This 11th of March 2004, the plaintiff's motion for reagument and enlargement of time to file a motion for reargument having been considered, it appears:
(1) The plaintiff is an inmate. He filed a legal malpractice action against Eugene J. Maurer, Jr., Esquire alleging, inter alia, negligence in failing to prosecute a Rule 61 motion. In connection with an initial review of the complaint, I ruled:
"The statute of limitations for legal malpractice has run. Maurer terminated his representation of plaintiff in 1995 and according to [plaintiff's] complaint, his claim for post-conviction relief expired over 6 years ago. The date of the alleged return of the file does not control the time for legal malpractice, the time of the injury controls."
Order showing clocked in date in the office of the Prothonotary of February 10, 2004.
(2) The motion is untimely as the period for reargument must be filed not later than five (5) days after the entry of judgment, which was February 10, 2004. The motion now presented was filed on March 2, 2004. The motion attaches an envelope which demonstrates that the Prothonotary's office did not mail the Order dismissing his complaint to him at the prison until February 13, and the prison notes its receipt on February 17, 2004. Petitioner claims that he did not actually receive a copy of the court order until February 18. He further claims that the process at the prison for access to the prison library and the mailing copying and mailing of documents takes two to three days. He claims good cause in failing to file his motion in a timely manner.
(3) The Supreme Court has indicated that there are circumstances which the court should consider hardship or impracticability when considering the strict application of the tight time limitations of Superior Court Civil Rule 59 regarding rearguments. Consequently, I will grant the extension of time and consider the reargument on the merits.
In re Dingee, 316 A.2d 555 (Del. 1974).
(4) The motion to reconsider argues that the Court abused its discretion in dismissing his action without notice and an opportunity to be heard; that the Court misapprehended the facts [which are solely the facts alleged by the plaintiff in his complaint] and the law as applied to his claim for legal malpractice based on the failure to prosecute motion for Rule 61 relief. In essence, he seems to urge that the statute of limitations would be tolled during the years that he did not have possession of his file. The plaintiff again misapprehends the applicable law and ignores the statute of limitations.
(5) Motions for reargument will be denied unless the Court has overlooked a decision or principle of law that would have a controlling effect or the Court has misapprehended the law or the facts so that the outcome of the decision would be effected. There is no error of fact or law.
Christiana Town Center, LLC v. New Castle County, 2003 WL 21488200, *1 (Del.Ch. 2003) ( quoting Huntington Homeowners Ass'n, Inc. v. 706 Investments, 1999 WL 499451, *1 (Del.Ch. 1999)).
(6) The plaintiff's motion for reargument is DENIED.